obvIPat - Obviously Patentable

The blog for inventors, in-house counsel, & entrepreneurs.

Archive for September, 2010

Should Patent Owners Care Whether Costco Sells Gray Market Omega Watches?

by Orlando Lopez

As the Supreme Court gets ready to hear Costco v. Omega, the amicus briefs have started to appear.  Intel, best known for a jingle and a large number of patents, filed an amicus brief a month ago.  Costco v. Omega is a copyright case appealing the Ninth Circuit decision holding that the “first sale” doctrine in copyright, which bars copyright owners from claiming copyright infringement after the copyrighted product has been sold, does not apply when the sale occurs outside the United States.  Why should a patent owner care?  Read the rest of this entry »

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CAFC Weekly: September 24, 2010

by Orlando Lopez

This week produced only one presidential opinion, Laryngeal Mask Company v. Ambu. Laryngeal Mask owns a patent related to laryngeal mask airway devices, which are used to deliver anesthetic gases during surgery and to establish unobstructed airways in patients.  Laryngeal Mask sued Ambu for infringement of this patent.  The District Court, granting summary judgment, found that Ambu did not infringe and that the patent was not valid for lack of written description.  In review of this case, the CAFC considered claim construction and the lack of written description.  Upon determining that that the claim construction was erroneous, the CAFC reversed the judgment of non-infringement.  Additionally, finding that there were issues of material fact, the CAFC remanded the issue of “lack of written description” back to the District Court for further consideration.  This opinion is of interest since it reviews how lack of written description is considered.  The determination of whether the written description requirement is satisfied is a matter of fact.

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"The real secret of success is enthusiasm."
Walter Chrysler, automotive pioneer

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CAFC Weekly: September 17, 2010

by Orlando Lopez

In the one precedential case of this week, American Medical Systems, Inc. v. Biolitec, Inc., the CAFC considered whether the term, “photoselective vaporization,” in the preamble of the claim should be considered in the claim interpretation or was only a descriptive term without an effect on the claim interpretation.  The CAFC held that the term was only a label, a descriptive term without impact on the interpretation of the claim.  The opinion underscores the flexibility and lack of definition in their legal opinions that provide guidance in determining whether a preamble term affects that claim interpretation.

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"The nation that secures control of the air will ultimately control the world."
Alexander Graham Bell

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